Edwards v Allwood

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Edwards v Allwood [2023] NSWPIC 244
APPLICANT:	Sharon Edwards
RESPONDENT:	Brett Allwood
Member:	Jane Peacock
DATE OF DECISION:	26 May 20223
CATCHWORDS:	WORKERS COMPENSATION - Total knee replacement surgery sought; undisputed left knee injury; undisputed pre-existing condition of osteoarthritis; respondent disputed surgery reasonably necessary as a result of the injury; evidence weighed in the balance and surgery found to be reasonably necessary as a result of the injury; Held – award for the applicant.
determinations made:	1. Award for the applicant under s 60 of the Workers Compensation Act1987 in respect of the proposed surgery in the form of a left total knee replacement on production of accounts and/or receipts.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (the Application), Ms Sharon Edwards
(the applicant) seeks a determination that proposed surgical treatment in the form of a left total knee replacement as proposed by her treating surgeon Dr Patterson is reasonably necessary as a result of injury to her left knee on 21 May 2020.
The respondent is Brett Allwood (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation.
The respondent denied liability for the claim for the proposed surgery.

ISSUES FOR DETERMINATION

There is no dispute that the applicant suffered an injury to her left knee on 21 May 2020.
She was paid weekly compensation and treatment expenses in respect of that injury.
She now seeks to have a left total knee replacement as recommended by her treating specialist Dr Patterson
The respondent does not dispute that the proposed surgery is reasonably necessary. However the respondent does dispute that the proposed surgery is reasonably necessary as a result of the injury on 21 May 2020. The respondent seeks that an award be made in favour of the respondent.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission, admitted by consent, and considered in making this determination:
For the applicant
(a)    The Application and attached documents.
For the respondent
(a)    Reply and attached documents.
(b)    Late documents filed with an Application to Admit Late Documents on 19 April 2023.

Oral evidence

The applicant did not seek leave to adduce oral evidence. Counsel for the respondent did not seek leave to cross-examine the applicant.

FINDINGS AND REASONS

There is no dispute that the applicant suffered an injury to her left knee in a fall at work on 21 May 2020.
The applicant now seeks to have a left total knee replacement as recommended by her treating specialist Dr Patterson.
There is no dispute that the proposed surgery is reasonably necessary.
There is however a dispute that the proposed surgery is reasonably necessary as a result of the injury on 21 May 2020.
I must determine, on the balance of probabilities, whether the proposed surgery in the form of a left total knee replacement as recommended by the treating surgeon is reasonably necessary as a result of injury on 21 May 2020. This determination must be made on the evidence and in accordance with the law.
Section 60 (1) of the Workers Compensation Act 1987 (1987 Act) provides as follows:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1) If, as a result of an injury received by a worker, it is reasonably necessary that—
(a) any medical or related treatment (other than domestic assistance) be given, or
(b) any hospital treatment be given, or
(c) any ambulance service be provided, or
(d) any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).”
There is no dispute that the proposed left total knee replacement is reasonably necessary surgery. It is disputed that the proposed surgery results from the undisputed injury to the left knee on 21 May 2020. There is also no dispute that the applicant suffered a pre-existing disease of osteoarthritis in her left knee.
In summary, the respondent submits that the need for surgery results from the underlying condition of osteoarthritis, that the fall on 21 May 2020 caused an aggravation of the underlying condition of osteoarthritis but the aggravation was only was temporary and it resolved such that the need for surgery results from the underling condition and not the fall. The respondent also argued that the clinical records show that in about July 2020 the applicant suffered a deterioration in her condition for reasons which are unknown and this deterioration lead to the need for surgery.
This case will be decided on the evidence. Turning then to an examination of the evidence in this case.
There is no dispute that the applicant suffered a pre-existing condition of osteoarthritis in the left knee. She was managing that with over the counter medication (Panadol osteo and ibuprofen) which she took in the morning. She performed relatively heavy worker as a disability support worker. She commenced working for the respondent in about 2011 and was able to manage this work on a full time basis for some nine years prior to the subject injury on 21 May 2020
The applicant gave evidence in two statements dated 4 February 2021 and 2 November 2022 respectively.
She gave evidence that she started working for the respondent Brett Allwood in about 2009 when she was employed by the Disability Support Network. She then left to go to Sydney. In about 2011 she was employed privately to care for Brett Allwood. He requires 24 hour care. She performed this work on a full time basis up until the injury.
The applicant gave evidence in respect of the osteoarthritis as follows:
“8. I have had osteoarthritis for about 7 years. I had been managing using over the counter medication.
9. I have not previously had any significant injuries or illness. I enjoyed good health before my work injury, I have never injured my knee prior to the work injury.”
Counsel for the respondent sought to make much of the applicant’s use of over the counter medication prior to the her injury to manage her osteoarthritis. Counsel’s submissions ignored the applicant’s evidence that her use of this over the counter medication increased three fold after the injury. The applicant gave evidence in her statement dated 2 November 2022 in this regard as follows:
“I have managed my osteoarthritis with Panadol Osteo and Ibuprofen. I used to take 2 Panadol and 2 ibuprofen in the AM. Now I take both medications 3 times a day ie 6 Panadol and 6 ibuprofen, AM, noon and PM. I was taking pregabalin but this didn’t offer any relief so I stopped taking this medication. I also trap, immobilise , ice and brace my knee.”
The applicant also gives evidence that on 22 July 2020 (so only some two months after injury) she was given a cortisone injection but this did not provide any lasting relief. There is no evidence that prior to the injury she was offered treatment by the way of cortisone injections. Indeed there is no evidence before me which shows that she was offered any ongoing treatment (beyond over the counter medication) or referral to specialist for her left knee prior to the subject injury. She did have a radiological investigation.
The applicant gave evidence that she felt immediate pain in her left knee when she slipped on a wet floor (dog urine) on 21 May 2020, falling forward and landing on her left knee.
She saw her general practitioner (GP) the next day on 22 May 2020 and was referred for an X-ray. She gave evidence:
“19. I first noticed the problem on 21 May 2020 and first saw a doctor on 22 May 2020 where I received Xrays. I had a pre-existing condition which was being managed. Since the fall, the pain is significantly worse ie I can’t work.”
Counsel for the applicant submitted that from the time the applicant saw her doctor after the injury there is consistent history of her reporting pain and unable to work. This is different from her management of her pre-existing osteoarthritis where she was able to work full time in relatively arduous employment as a Disability Support Worker over many years. After injury, there is a consistent and uninterrupted history where the left knee doesn’t get better than worse again, rather there is just continual deterioration.
Counsel for the applicant submitted that the applicant experienced osteoarthritic pain in her left knee from time to time prior to injury and whilst the clinical entries date back to 2013, the respondent can’t point to anything other than minor flare up of left knee pain. In contrast, after injury on 21 May 2020 there is a consistent and overwhelming clinical history recorded that she was “functionally struggling” and unable to return to her pre-injury work because of left knee pain.
The applicant gave evidence that she was given a certificate of capacity but was unable to work due to the limitations:
“I was given capacity for work when I received my Workers Compensation Certificate of Capacity however I am unable to do my work due to the limitations.”
On 14 July 2020 she was terminated from her employment.
The clinical records from the applicant’s GP are in evidence and are consistent with the evidence the applicant has given. The clinical entries support ongoing complaints of pain in the left knee since the subject injury which did not resolve and which were the subject of ongoing physiotherapy and a referral to an orthopaedic specialist who saw the applicant on 1 July 2020, only some six weeks after the injury. This was the first time on the on the evidence that the applicant had been referred to an orthopaedic specialist in respect of her left knee despite having been diagnosed with osteoarthritis some seven years prior.
Counsel for the respondent submitted that the clinical notes record that the applicant was given a pre-injury duties certificate. Counsel for the respondent conceded that she was not able to find or produce this certificate.
Counsel for the respondent points to this entry as supporting the proposition that the applicant had recovered at this date from her injury and was able to return to work. This submission is made to support the respondent’s argument that the injury on 21 May 2020 was in the nature of a temporary aggravation only, and which had resolved.
This is completely inconsistent with the other evidence that is before me and indeed inconsistent with the doctors own clinical notes that show, when the clinical notes are read in their entirety, the applicant was really only certified fit for suitable duties, and consistent with the applicant’s evidence, the respondent was unable to provide her with same and she was terminated. In any event the evidence shows she did not at any time after the fall experience an improvement in her symptoms such that she could be considered recovered or that the aggravation had ceased. Rather she had ongoing consistent and persistent complaints of pain, locking, swelling and she was receiving ongoing physiotherapy, This is all represents a markedly different clinical picture post fall than prior to the fall. She could not return to work after the fall. She was able to work full time in relatively arduous employment as a disability support worker prior to the fall notwithstanding having been diagnosed with osteoarthritis in the left knee some years prior.
In light of her ongoing left knee symptoms Dr Maher, the treating GP, referred the applicant on to see Dr Darren Patterson, orthopaedic and trauma surgeon. He saw the applicant on 1 July 2020 and reported back to Dr Maher on the same day as follows:
“Thankyou for asking me to see Sharon, a 58 year old lady who is a disability support worker. Her presenting complaint is left knee anterior and medial pain with a posterior component, She slipped and fell on the 21^st May 2020 whilst caring for a patient. She has been having ongoing problems with her left knee. Treatment thus far has just included Nurofen and simple analgesics, Sharon is functionally struggling but is able to walk without aids but unable to work. She describes some swelling, clicking and cracking in the left knee.
Xray’s show moderate osteoarthritis affecting the medial compartment of the knee. MRI confirms this with a meniscal tear.
Clinical examination shows an arc of motion of 0 to 100 degrees, a small to moderate effusion, tender medial joint line and a slightly irritable patellofemoral joint. Pedal pulses are present, medial pseudo laxity correctable to neutral.
I think in the first instance Sharon would be a good candidate for an injection of local anaesthetic and cortisone and I discussed with her today arthroscopic surgery which in isolation in her setting is probably not going to be helpful but that with a combination of radiofrequency ablation may be an option for her if she doesn’t settle down with the intra- articular injection. I have referrer ger off for injection today and I will see her back again in 4 to 6 weeks for review to see how she is progressing.”
Dr Patterson sees the applicant some seven weeks after injury, records a consistent history of ongoing problems with the left knee since the fall and notes that the applicant is functionally struggling and cannot return to work.
He recommends in the first instance an injection which the applicant has in July 2020 but that provides no lasting relief.
Dr Patterson reviewed the applicant after the injection did not work. He then recommended arthroscopy with radio-frequency ablation. The insurer did not approve this treatment. Ultimately, Dr Patterson recommended a left total knee replacement. There is no dispute that the left total knee replacement is reasonably necessary surgery although it is of course disputed that the need for the surgery results from the injury on 21 May 2020.
Dr Burns, occupational physician, provided an independent medical expert (IME) opinion at the request of the applicant’s lawyers. He saw the applicant on 1 April 2021, recorded a history consistent with the other evidence, and conducted a physical examination of which there were positive findings.
The applicant gave Dr Burns a history consistent with the other evidence about her pre-existing condition of osteoarthritis as follows:
“Ms Edwards reported that she was initially diagnosed with osteoarthritis about 8 to 10 years ago. It was treated mostly with over the counter (OTC) medication and strapping. It has though been giving her pain on and off over the years and she has had previous X rays or scans of her knee. She was diagnosed with chronic osteoarthritis, mostly in the medial compartment.”
Dr Burns went onto diagnose as follows:
“Ms Edwards has aggravated pre-existing chronic osteoarthritis in her left knee. There is no evidence of any new pathology in the left knee, but she has aggravated her previous condition giving her more symptoms in the left knee”
Dr Burns goes onto proffer the following opinion on treatment:
“She will eventually require a left total knee replacement. I note that as her pathology has not increased significantly following this injury that she would have eventually required a left total knee replacement even without the fall. It is likely though that increased symptomatology from the fall will lessen the length of time between now and when she does need a total knee replacement. The exact amount that it is decreased cannot be estimated.”
I note the insurer did not approve treatments which were requested prior to the left total knee replacement.
Counsel for the applicant highlighted that in Dr Burns opinion the need for the total knee replacement has been likely brought forward by the aggravation that resulted from the fall at work on 21 May 2020 and added that it is required now while the applicant is still in the throes of her working life.
I note the respondent procured a number of different IME opinions. The respondent says that they were all obtained for different purposes. I note the applicant took no objection to the respondent’s reliance on them.
The applicant was seen by IME Dr Panjratan, orthopaedic surgeon, on behalf of the insurer. Dr Panjratan saw the applicant on 26 November 2020, some six months after injury, and provided a report to the insurer on 18 December 2020. Dr Panjratan saw the applicant at the insurer’s request because of the request for approval of the radiofrequency ablation proposed by Dr Patterson.
He recorded a history consistent with the other evidence before me, conducted a physical examination, reviewed the investigations. He was given a consistent history of pre-existing osteoarthritis of the left knee which did not interfere with the applicant ability to work prior to the injury.
Dr Panjratan came to the diagnosis of the fall at work aggravating of pre-existing osteoarthritis in the left knee and that the mechanism of injury was consistent with the diagnosis.
He was asked a series of questions under the heading “ongoing causation” which he answered in a manner that supports the applicant case, namely that the osteoarthritis was a pre-existing condition, that was asymptomatic and once triggered as it was by the subject fall, will continue to deteriorate.
He did not support the request for radiofrequency ablation which he considered experimental and unlikely to help. He did however consider that the treatment request was related to her fall at work and no other reason:
“The proposed treatment is related to the employment related injury on 21 May 2020 and to no other reason.”
He considered her unfit for work because of her work injury. He did not think the radiofrequency ablation would help her return to work.
The applicant saw IME Dr Powell at the request of the insurer on 1 June 2021 and he provided a report dated 2 June 2022. Dr Powell saw the applicant, took a history of injury and osteoarthritic condition, conducted an examination, had regard to the investigations and provided a diagnosis of aggravation of underlying osteoarthritis in the fall but he considered that it was temporary aggravation only, that the applicant had recovered from the effects of the fall and the need for a total knee replacement whilst reasonably necessary, was not reasonably necessary as a result of the fall but as a result of the natural progression of the disease.
When I weigh Dr Powell’s opinion in the balance with the other evidence before me I do not consider he has taken adequate notice of the fact that there is no evidence in the clinical records before me that the applicant ever recovered from the effects of the fall which were increased symptomology in the left knee, locking clicking and swelling which were consistently reported by her post injury and which persisted over time and in the absence of the other interventions recommended by her surgeon which were not approved by the insurer.
Associate Professor Miniter provided an IME opinion on behalf of the insurer. He did not see the applicant but conducted a file review only. He provided a report dated 15 July 2021 in which he dealt the request for arthroscopy. He considers this won’t help and the only sensible option is a total knee replacement. However he considers that any aggravation by the fall has long since ceased. He takes issue with the other IME Dr Panjratan who provided a report on behalf of the insurer. Associate Professor Miniter opines:
“I take issue with the report of Dr Panjratan and respectfully disagree with him that there is no significant evidence to suggest that this is other than a pre-existing matter, If there was an aggravation, it has long since ceased.”

Associate Professor Miniter went onto say:
“May I repeat that I could see no evidence that the matter as it stands is related to the workplace but if one assumes that it is then the only appropriate treatment is total knee replacement and then return to fil duties.”
The insurer appropriately does not dispute that the surgery in the form of total knee replacement is reasonably necessary.
When I weigh Associate Professor Miniter’s evidence in the balance with the other evidence, I take into account that he did not see the applicant and did not take a history from her and nor did he seem to have a complete clinical record before him. As such he does not take adequate account of the clinical picture pre the fall as compared to post the fall.
In letter dated 30 September 2021, the applicant’s treating specialist Dr Patterson provides a response to Associate Professor Miniter’s report. He highlights that Associate Professor Miniter did not see the applicant but just conducted a file review. He again recommends the value of the radio frequency ablation with arthroscopy because he is still trying to avoid undertaking the knee replacement at this stage. He states:
“I stand by my original management plan of radiofrequency ablation and arthroscopy because of the strong temporal link between her injury and the development of symptoms. I would not recommend arthroplasty as a management option in the first instance this being a simplistic algorithm for a problem that has other solutions.”
Dr Patterson ultimately came to recommend the total knee replacement because the other options were not approved by the insurer.
When I weigh all of the evidence in the balance, I prefer, for the reasons given throughout, the evidence given by the applicant, supported by the clinical records of Dr Maher her treating GP, and the evidence of her treating specialist Dr Patterson, and the opinion of Dr Burns. I note that the applicant’s case is also given support by Dr Pajratan, an IME qualified on behalf of the insurer. I prefer these opinions to the opinions of Dr Powell and Associate Professor Miniter. There is no evidence in the clinical records before me that the applicant recovered from the aggravating effects of the fall on 21 May 2020. She had a pre-existing osteoarthritic condition which, prior to the fall on 21 May 2020, only experienced flares up from time to time and was managed with over the counter medication. It did not stop her doing her relatively arduous work on a full time basis as a disability worker for many years prior to the subject injury. After the fall she consistently complained of ongoing symptomology in the left knee which persisted and deteriorated in the face of the insurer’s declinature of other alternative procedures, ultimately leading to the request for a total knee replacement. For surgery to be considered reasonably necessary as a result of any injury it has to be found, on the evidence, to result from the injury. The injury does not need to result solely from the injury. The injury does not need to be the main contributing factor to the need for surgery.
When I weigh all of the evidence in the balance I am satisfied, on the balance of probabilities, that the surgery proposed by Dr Patterson in the form of a left total knee replacement is reasonably necessary as a result of injury on 21 May 2020. Accordingly, I will make an award in favour of the applicant as follows:
1. award for the applicant under s 60 of the 1987 Act in respect of the proposed surgery in the form of a left total knee replacement on production of accounts and/or receipts.

[2023] NSWPIC 244

26 May 2023